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Student agrees to withdraw from university following settlement

By Sarah Kuta

Staff Writer

Posted:
02/20/2015 10:02:44 AM MST

The University of Colorado's Boulder campus. ((Courtesy CU-Boulder))

EDITOR'S NOTE: This story has been updated to clarify how the campus's findings in John Doe's sexual assault case will be treated. His record will not be expunged, but CU will not reveal his convictions under the student code of conduct without his consent.

The University of Colorado has agreed to pay a suspended male student $15,000 and will not disclose without a waiver the details of his disciplinary record — which includes convictions under the campus judicial process in a 2013 sexual assault case.

The university will not reveal his identity to the public and agreed to provide John Doe with a positive reference.

John Doe agreed to withdraw from the university.

"In response to any question about whether Mr. Doe would be welcome back to the university, the university will respond in the affirmative," CU officials write in the settlement agreement. "In response to any question about Mr. Doe's academic standing at the university during his tenure there, the university will respond, 'Prior to his withdrawal, Mr. Doe was a student in good academic standing.'"

John Doe had been serving a three-semester suspension after being found guilty of non-consensual sexual intercourse and non-consensual sexual contact in violation of the CU Student Code of Conduct.

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Per the agreement, his suspension will end Saturday.

A sanction such as a suspension appears on a student's transcript for its duration. Because CU is ending John Doe's suspension early, his transcript will no longer show the sanction.

If any party, such as another college or university, asks CU about John Doe's disciplinary record, CU has agreed to say only: "In fall 2013, John Doe (his actual name will be stated) was subject to a student conduct investigation and was found to have violated two code provisions."

Beyond that, the university will direct all inquires to John Doe and will not provide further information unless he signs a waiver.

CU's chief legal officer Patrick O'Rourke said the agreement was a business decision.

"The amount of the settlement reflects on the value of the claims, and we believe an agreement that saves the university tens of thousands of dollars in defense costs was a prudent use of the university's resources," he said.

An attorney for John Doe applauded the settlement agreement and said the student can now "move on."

"Our client's integrity is intact, his transcript is clean and he will now be able to move on with his life without Jane Doe's false allegations holding him back," said Kimberly Lau of Nesenoff and Miltenberg, a New York City-based law firm.

On Thursday, the two parties filed a motion to dismiss John Doe's lawsuit in U.S. District Court in Denver.

U.S. District Judge Raymond Moore dismissed the suit with prejudice, which means John Doe can't bring future action on the same claim. Moore's judgment is final.

When the suit was filed in November, the student's lawyers asked to use a pseudonym, a request granted by the court.

O'Rourke said lawyers from both sides worked to protect John Doe's identity in the settlement.

"The federal court granted a privacy restriction over the filing of this lawsuit," O'Rourke said. "Consequently, in the resolution of the case, we worked with opposing counsel to resolve the claim in a manner that preserves the anonymity of the claimant."

CU has named several students in past settlements, including Sarah Gilchriese, an undergraduate on the Boulder campus who claimed CU didn't do enough after she said she was sexually assaulted. CU paid her $32,500 in February of 2014.

Attorney: Deal with CU is 'troubling'

Boulder attorney John Clune, who specializes in Title IX litigation, said the settlement was "extremely favorable" to the university because it resulted in a small payout and led to John Doe withdrawing from CU.

He said the agreement may or may not help John Doe, who could still have trouble transferring to another school.

"There are a lot of schools on the application that ask, 'Have you been disciplined for anything at your previous school?' And if the answer is yes, they require students to sign a waiver authorizing the release of all information held by the previous school on the matter," Clune said. "He's not going to be able to go wherever he wants to go without having to disclose what happened."

Clune said he's concerned that even though CU did not "undo" its sexual misconduct findings, another university would need to obtain a waiver from John Doe to review his disciplinary record.

"There's language that looks like it's designed to conceal that information from some other school he might be transferring to," Clune said. "That's troubling to me to see any university who has found somebody responsible for sexual misconduct reach an agreement to conceal that information from other schools."

Clune said it's true that CU has no obligation to protect students at other schools, but the agreement could lead to harm to a student at another school.

He said he feels there needs to be an obligation across schools "to disclose or elicit" information about past misconduct.

"Schools seem comfortable engaging in this kind of 'Don't ask, don't tell' process," Clune said. "If you're a rape victim or a victim's family at the subsequent school, it's pretty infuriating to learn that another school had that information but didn't provide it."

O'Rourke defended the agreement by saying that the burden falls on John Doe's next school to obtain the specific details of his disciplinary record.

"The settlement terms allow the university to disclose to any authorized outside party that the claimant was the subject of student conduct proceedings and that he was found responsible for two violations of the student code," O'Rourke said. "Anyone receiving that information may follow up with the claimant and request whatever information reflects upon his fitness for future educational and employment opportunities."

Lawsuit filed under Title IX

John Doe's lawsuit claimed that CU violated his civil rights under Title IX, the federal gender equity law, after he was found guilty of sexual assault in 2013.

The student argued that he was wrongfully accused and suspended after a night of consensual sex.

"CU-Boulder has created an environment where an accused male student is fundamentally denied due process by being prosecuted through the conduct process under a presumption of guilt," John Doe's lawyers wrote in their lawsuit. "Such a one-sided process deprived John Doe, as a male student, of educational opportunities at CU-Boulder on the basis of his sex."

John Doe's attorneys argued that CU administrators did not advise him of support services on campus, were inflexible with meeting dates and times, did not investigate important evidence and did not interview several eyewitnesses.

They also claimed that the woman made a false complaint because she was angry when she "realized he's just another douchy frat dude" and reported the assault because she wanted to scare him, according to the lawsuit.

CU's lawyers asked the judge to throw out the lawsuit in early January. The two parties have been hinting at a potential settlement agreement in court documents since mid-January.

CU-Boulder is also facing an unrelated federal investigation into its handling of a 2013 sexual assault.

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